Every doctor will face situations where treatment doesn’t go
as well as planned, whether it’s an inherent risk or an error of some kind. How
the adverse event is handled can make a big difference to the impact for the
patient and the treating team.
Civil compensation claims are often in part the result of poor
communication, insensitive handling or a delay in providing details of an
adverse clinical incident. There are usually other motivating factors, such as
a perceived injustice, significant adverse outcome or financial hardship which
drive compensation claims, but not open disclosure.
So it doesn’t mean you are going to get sued as a result of
something you said during the process. Avant’s position, in accordance with the
Australian Open Disclosure Framework, is that an apology is not intended to be,
and should not be seen as, an admission of liability or a statement casting
blame on some other person or organisation. It is simply the right thing to do
for the patient.
Lack of honesty costs $600k
In a well-publicised case we noted, a patient was experiencing
lower back pain due to a disc
protrusion between the third and fourth lumbar vertebrae,
which impinged on the fourth
lumbar nerve on the left. A laminectomy and discography was
performed which was intended
to be at the L3-4 level, however the surgeon conducted the
operation on the wrong disc at the
L4-5 level, which was only discovered by subsequent imaging.
Following the procedure, the patient continued to experience
back pain that was worse than before. However, the patient was not informed of the mistake
by the surgeon, who altered the operation report to indicate he had operated at the L4-5
level. The surgeon then also changed the pre-operative diagnosis to make it appear there was a problem
at L4-5 level when there wasn’t.
Consent was then obtained from the patient by the surgeon, for
a further operation at the L3-4 level, which should have been carried out in the first place.
After this operation the site became infected and the patient was hospitalised. The area was
re-opened and drained but the back pain did not go away and further imaging confirmed the
presence of arachnoiditis.
The patient sued the surgeon for damages as a result of the
back operation. The case went to court and heard before a judge.
In addition to negligence, the surgeon faced a claim of
battery for not having proper consent, as consent obtained earlier for the second operation was
nullified by the surgeon’s lack of candour in obtaining it for this procedure. As a consequence the judge
ordered the surgeon to pay over $400k in damages, which was increased on appeal to be in
excess of $600k.
This is an extreme case but it exemplifies how things could
have been different if the surgeon had advised the patient that the operation had been performed at the wrong level, as soon as this error became known.
A lapse in the standard of care may be the failure to
recognise the adverse event, to act
appropriately to rectify the problem, or explaining to a
patient what has happened and any
anticipated short-term and long-term consequences.
Open disclosure is simply providing information to patients,
but can also be a legal obligation
when a patient has suffered an injury as a result of their
medical treatment. It is also an ethical
requirement enshrined in the Medical Board of Australia’s Code of Conduct, which states, ‘When
adverse events occur, you have a responsibility to be open and
honest in your communication with your patient’. However failure to engage in open
disclosure may also have legal implications.
The best time to engage in open disclosure is when the patient
is suitably fit to understand the information conveyed to them. Often patients do not fully
comprehend what is being said. They may come back later asking the same questions, or making
a complaint in order to elicit information as to what occurred. Medical practitioners should
not be put off by this possibility.
Brooke Clark, BA, Claims Manager, NSW
Undertaking open disclosure discussions is the right thing to
do, even though it may not guarantee avoiding a complaint. The failure to do so
isn’t just an ethical issue but has legal and financial implications. Avant Law
recently assisted a member in response to a complaint, despite open disclosure
having taken place with a patient.
The patient underwent a colonoscopy, which the doctor said
with no apparent complications. Nurses monitored the patient
post-operatively, but the patient slowly declined. They had low blood pressure
thought to be due to the anaesthetic. When the patient continued to deteriorate
the treating team assessed the patient and decided the failure to recover was
due to a surgical complication. The endoscopist suspected it could be a rare complication
and ordered an urgent CT scan of the abdomen. The CT scan indicated intra-abdominal
fluids and they started transfusing the patient straight away and undertook
surgery to arrest the bleeding.
Apology not enough
The family was kept informed throughout the procedure and once
the patient was fit, the endoscopist apologised to the patient and the family for
the complication. This was documented and he sought to follow up the patient’s
progress following discharge. While the patient recovered, there was lasting injury and a complaint was made to a
complaints body. The patient’s primary complaint was they felt they had not
been given an adequate explanation of what went wrong.
Responding to the
Avant assisted the endoscopist to respond to the complaint and
clearly demonstrated that he had delivered the expected standard of care, and open
disclosure about the adverse event had occurred. The endoscopist also permitted his
response to the regulator to be passed onto the patient to assist their understanding
of what had transpired.
Based on the evidence and response provided, the complaints
body discontinued dealing with the complaint.
Michael Swan BN, LLB, Senior Solicitor, Avant Law, NSW
All jurisdictions in Australia have ‘apology’ laws that
protect statements of apology or regret made after incidents, so they can’t be
used as evidence of an admission of guilt. This protective legislation aims to
create an environment where doctors can feel comfortable expressing regret to
Open disclosure is defined as an ethical obligation to be open
and honest in your doctor-patient relationships. Our experience is that open
disclosure in itself rarely leads to claims for compensation. However, claims
can arise when the process is not handled by experienced practitioners with
first-hand knowledge of the incident, or when patients or their families
perceive a communication problem has occurred during the process.
open disclosure by its members in accordance with the Australian Open Disclosure Framework
members to undertake an open disclosure process with patients and will provide advice, information,
and support during what can be a stressful and difficult time
members to seek early advice and support during this process
guidance to members to provide apologies to patients who have suffered
- an adverse outcome from treatment.
The open disclosure discussion is probably one of the most
difficult conversations a doctor can have with a patient or a patient’s family.
Usually they occur because a patient has suffered an adverse event, sometimes
death, and that event is sometimes because of a medical error. It is not only a
legal requirement to disclose but an ethical one that’s part of a doctor’s duty
Like all difficult conversation, it is best to think about
what you want to say and how you might say it. These discussions are emotional
and often unpredictable and the events can leave doctors feeling devastated.
Effective communication is the most important part of a successful open
disclosure discussion with patients.
Tips for discussions:
the patient is suitably fit to understand the information conveyed.
stock of your emotions.
about the patient’s or family’s expectations.
how they might feel about the information they are being given.
yourself for tears, anger, threats, aggression and silence.
the words you might use.
junior doctors, always discuss it with a more experienced doctor beforehand.
*All names in the case studies have been changed.
This article was originally published in Connect issue
Download our factsheets Responding to a direct patient complaint and Open
disclosure: how to say sorry.
Complete our eLearning course, Open disclosure.
If you have received a complaint, contact our MLAS on 1800 128 268 for expert advice on how to
respond, available 24/7 in emergencies.